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 Post subject: ULSTER & DELAWARE REVITALIZATION CORP.--PETITION FOR DECLARA
PostPosted: Mon Feb 05, 2018 1:46 pm 

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Would anybody involved care to comment?
ULSTER & DELAWARE REVITALIZATION CORP.--PETITION FOR DECLARATORY RELIEF FD_36164_0
https://www.stb.gov/Filings/all.nsf/d6ef3e0bc7fe3c6085256fe1004f61cb/9b5cf023b50085758525821700727744/$FILE/244983.pdf
GME


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 Post subject: Re: ULSTER & DELAWARE REVITALIZATION CORP.--PETITION FOR DEC
PostPosted: Mon Feb 05, 2018 9:50 pm 

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It sounds like the STB has made the decision that the Ulster county must reply back to the STB about the Revitalization corp request about the trackage if declared abandoned or not. Track has been pulled already. If you've read previous posts here the Ulster & Delaware Revitalization is an economic group of varied citizens/business owners etc interested in the line be kept intact for economic concerns. Ripping the tracks out without full abandonement proceedings would be improper procedures, and since some track has been pulled at this point it seems this track has to be replaced back, if this is the jist I am getting from the Revitalization Corps concern.

I would have to find a bunch of threads and links but political stance about ripping the tracks out is about protecting the water supply from accidental locomotive spills of fuel, which to me is balderdash as any major storms will pump dirt/errata etc into the waterway at a rate far more severe than any fuel spill. If you saw their website they have an electric engine/streetcar/LRV whatever on the main page indication a stance for electric propulsion for the rail line.

If you recall the former Kingston Mayor was being rather dogmatic about the Catskill Railroad and the placement of a firetruck on the railroad tracks.

Because of a legal binding issue the Catskill Railroad cannot comment any workings the Ulster and Delaware is doing on the track. This leads me to the Revitalization Corp Group working on economic revitalization of the area and they have requested to the STB about the abandonment status (or the non-abandoned status) of the rail line they have pulled track out and the Ulster & Delaware counties may have done something illegal. I rather suspected the counties might pull a fast quiet one and start pulling tracks, and that happenned. Now see what.

I waited for any other replies here but I am throwing in my observances whats happenned here, anybody can chime in and put more info in.

https://www.stb.gov/Decisions/readingro ... enDocument

I can't read the PDF because of some technical issues but the link should give the whats in the PDF.

I like what the Revitalization Corp wants to do, I hope what they are doing brings out some political muckery.


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 Post subject: Re: ULSTER & DELAWARE REVITALIZATION CORP.--PETITION FOR DEC
PostPosted: Tue Feb 06, 2018 8:55 am 

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here is the PDF


46261 SERVICE DATE – FEBRUARY 1, 2018
DO
SURFACE TRANSPORTATION BOARD
DECISION
Docket No. FD 36164
ULSTER & DELAWARE RAILWAY REVITALIZATION CORP.—
PETITION FOR DECLARATORY ORDER
Decided: February 1, 2018
On January 16, 2018, the Ulster & Delaware
Railway Revitalization Corp. (U&D), a non-profit tax-exempt New York corporation, filed a petition for declaratory order requesting that the Board determine whether a line of railroad located in Ulster County, N.Y. (County), known as the
Catskill Mountain Branch (the Line), has been
abandoned, and if so, whether the conversion of the
Line’s right-of-way into a trail could be done
pursuant to the National Trails Act, 16 U.S.C.
§ 1247(d). On January 24, 2018, the C
ounty filed a verified motion for an extension of time to file
a reply. The County asserts that it was never served a copy of the
petition and that its reply will involve the review of facts a
nd files which are around 40 years old. Thus, the County seeks a 30-
day extension, up to and including March 7, 2018, to respond to U&D’s petition.
U&D responded to the County’s extension request on January 25, 2018, asserting that the
County was provided with timely service of the petition but noting that U&D would be willing to agree to a short extension, until February 13, 2018.
A reasonable extension of time will be granted for the County’s reply to U&D’s petition.
An extension of 30 days from the date of the
County’s motion should be sufficient to permit the
County to respond to the petition without undue prejudice to U&D.
U&D states in its January 25 reply that it would be willing
to engage in Board-sponsored
mediation with the County. The Board favors the resolution of disputes through the use of
mediation and arbitration procedures, in lieu of formal Board proceedings, whenever possible. If the County is amenable to Board-sponsored medi
ation, it is requested to so inform the Board.
It is ordered:
1. The County’s reply to U&D’s petition will be due
by February 23, 2018.
2. This decision is effective on its date of service.
By the Board, Scott M.
Zimmerman, Acting Director, Office of Proceedings.


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 Post subject: Re: ULSTER & DELAWARE REVITALIZATION CORP.--PETITION FOR DEC
PostPosted: Tue Feb 06, 2018 2:30 pm 

Joined: Sun Aug 22, 2004 8:28 am
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Location: Salt Lake City, Utah
Correct me if I am wrong, but I believe the subject railroad was not included in the Conrail Final System Plan in 1975, and was not conveyed to another railroad, and thus was approved for abandonment then. Didn't the County receive the line from the Penn Central Bankruptcy estate in lieu of back property taxes?

I know in the past, the STB has refused to exercise jurisdiction over lines not included in the Conrail plan, and authorized for abandonment. This might be the case.

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 Post subject: Re: ULSTER & DELAWARE REVITALIZATION CORP.--PETITION FOR DEC
PostPosted: Tue Feb 06, 2018 2:32 pm 

Joined: Sun Aug 22, 2004 12:15 am
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dinwitty wrote:
If you recall the former Kingston Mayor was being rather dogmatic about the Catskill Railroad and the placement of a firetruck on the railroad tracks.


Actually Gallo had Kingston Public Works park a dump truck on the line, back in 2013.
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 Post subject: Re: ULSTER & DELAWARE REVITALIZATION CORP.--PETITION FOR DEC
PostPosted: Tue Feb 06, 2018 11:39 pm 

Joined: Wed Oct 22, 2008 8:18 pm
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yeh, if I had the power at that time I woulda called a tow truck and yanked that truck right off.

I want to see a full report of this meeting if the counties and the Revitalization Corp get together and -NO- behind the door meetings. It is too blazing quiet/loud about all of this. The STB notice about forces the meeting, and if the counties don't...hmmmmmm


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 Post subject: Re: ULSTER & DELAWARE REVITALIZATION CORP.--PETITION FOR DEC
PostPosted: Wed Feb 07, 2018 10:09 am 

Joined: Tue Aug 31, 2010 6:56 pm
Posts: 18
This is a very good point about abandonment. Back in the 80's when I was with Conrail, we used to load stone in Kingston Yard for a customer on Long Island. I distinctly remember a colleague of min telling me that we could open up a shortline to the quarry. They were willing to do that.

So if the county received the line......then the intention at that time was to continue for business and it is likely that they would NOT apply to abandon the line.

I think that I also recall hearing that AFTER the transition to the county that REVENUE loads were moved. Certainly not on an abandoned railroad as they would likely need the authority to do so.

So I think that it will be easy to prove that the intent of the passion by the county was economic development and not abandonment.

I feel bad about the situation here but one must do business as a railroad to make money. I am very happy that I started a sustainable unit train stone business to Holtsville on Long Island that is still going strong 25 years later. That is good railroading.

As I mentioned on previous posts, the real business opportunities exist on the "next mile" of track that the county has hastily pulled up. They must know that and are being spiteful because they could have started in the middle. It is very ODD that businesses exist in an area owned by NYDEP like an asphalt plant and that the NYDEP is not trying to evict them but is trying to evict the RR. This is weird.

ACD


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 Post subject: Re: ULSTER & DELAWARE REVITALIZATION CORP.--PETITION FOR DEC
PostPosted: Wed Feb 07, 2018 4:13 pm 

Joined: Thu Sep 29, 2011 10:17 am
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Location: New York
wilkinsd wrote:
Correct me if I am wrong, but I believe the subject railroad was not included in the Conrail Final System Plan in 1975, and was not conveyed to another railroad, and thus was approved for abandonment then. Didn't the County receive the line from the Penn Central Bankruptcy estate in lieu of back property taxes? I know in the past, the STB has refused to exercise jurisdiction over lines not included in the Conrail plan, and authorized for abandonment. This might be the case.


Conrail operated the Catskill Mountain Branch under a six-month directed subsidy to give the remaining customers time to move their shipments from rail to truck. Penn Central had petitioned for abandonment, but no record can be found if ICC granted request or not. NYSDOT claims they "accepted" PC's request for abandonment, but that doesn't mean anything. Conrail spiked the switch shut and took the CMB out of service in 1976, but did not file for abandonment (they didn't own the track, PC did). Ulster County purchased the track from the estate of Penn Central in 1979. I don't know if there was an actual purchase, or if they accepted the property in lieu of back taxes.

So the question remains:

- If the CMB was abandoned, why is there no record of it?

- If the CMB was abandoned, how did Ulster County lease operation of the tracks to Catskill Mountain Railroad in 1982? Tracks were connected to the national network, CMRR received interchange for freight customer in Kingston. Can you legally operate on an abandoned track?

- If the CMB was abandoned between 1976 and 1979, then that abandonment pre-dates the 1983 railbanking amendment to the National Trails Act. In that case, Ulster County is possibly breaking the law by removing rail and converting the right of way to trail.

- If the railroad has never been abandoned, then why didn't Ulster County follow procedure and file with the STB their intent to convert the right of way to a trail? In that case, Ulster County is possibly breaking the law by removing rail and converting the right of way to trail.

The STB is not concerned with politics, but they will rule on the matter of policy and procedure. It doesn't sound like the county has the facts on their side. Will the STB force the county to replace the tracks that have been removed? That is everyone's giddy dream.

-otto-

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 Post subject: Re: ULSTER & DELAWARE REVITALIZATION CORP.--PETITION FOR DEC
PostPosted: Wed Feb 07, 2018 5:00 pm 

Joined: Wed Sep 02, 2015 11:34 pm
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For all the money the county puts into fixing its infrastructure it would seem plausible that it wouldn't cost them much. If the verdict calls for a reinstatement of the rails we can be safe to assume Ulster won't bankrupt itself of its own incompetence.
I've never seen local bureaucracy fail so miserably at the one job its supposed to be good at. It's almost like they were trying to be caught Otto.


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 Post subject: Re: ULSTER & DELAWARE REVITALIZATION CORP.--PETITION FOR DEC
PostPosted: Wed Feb 07, 2018 6:56 pm 

Joined: Sun Aug 22, 2004 8:28 am
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Location: Salt Lake City, Utah
Otto Vondrak wrote:
wilkinsd wrote:
Correct me if I am wrong, but I believe the subject railroad was not included in the Conrail Final System Plan in 1975, and was not conveyed to another railroad, and thus was approved for abandonment then. Didn't the County receive the line from the Penn Central Bankruptcy estate in lieu of back property taxes? I know in the past, the STB has refused to exercise jurisdiction over lines not included in the Conrail plan, and authorized for abandonment. This might be the case.


Conrail operated the Catskill Mountain Branch under a six-month directed subsidy to give the remaining customers time to move their shipments from rail to truck. Penn Central had petitioned for abandonment, but no record can be found if ICC granted request or not. NYSDOT claims they "accepted" PC's request for abandonment, but that doesn't mean anything. Conrail spiked the switch shut and took the CMB out of service in 1976, but did not file for abandonment (they didn't own the track, PC did). Ulster County purchased the track from the estate of Penn Central in 1979. I don't know if there was an actual purchase, or if they accepted the property in lieu of back taxes.

So the question remains:

- If the CMB was abandoned, why is there no record of it?

- If the CMB was abandoned, how did Ulster County lease operation of the tracks to Catskill Mountain Railroad in 1982? Tracks were connected to the national network, CMRR received interchange for freight customer in Kingston. Can you legally operate on an abandoned track?

- If the CMB was abandoned between 1976 and 1979, then that abandonment pre-dates the 1983 railbanking amendment to the National Trails Act. In that case, Ulster County is possibly breaking the law by removing rail and converting the right of way to trail.

- If the railroad has never been abandoned, then why didn't Ulster County follow procedure and file with the STB their intent to convert the right of way to a trail? In that case, Ulster County is possibly breaking the law by removing rail and converting the right of way to trail.

The STB is not concerned with politics, but they will rule on the matter of policy and procedure. It doesn't sound like the county has the facts on their side. Will the STB force the county to replace the tracks that have been removed? That is everyone's giddy dream.

-otto-


Otto,

I think everyone's giddy dreams may be getting in the way of reality. Here's an instructive case from the STB that explains the factors as to whether a line has been abandoned:

https://www.stb.gov/decisions/readingro ... ment#_ftn6


Quote:
Historically, determining when abandonment authority was consummated was determined by a case-by-case evaluation of all the facts and circumstances to determine the line owner’s intent. Beaufort R.R.—Modified Rail Certificate, FD 34943 (STB served Mar. 19, 2008). In determining intent, the Board looked to the line owner’s actions considered in their entirety, assessing both the owner’s stated intentions and the various physical acts taken that might carry out that intent, such as cessation of operations, cancellation of tariffs, the length of time there had been no rail service, efforts taken to maintain the line, salvage of the track and track materials, and relinquishment of control over the right of way. Id. See also Becker, 132 F.3d at 62; Birt v. STB, 90 F.3d 580 (1996); Black v. ICC, 762 F.2d 106, 112-113 (D.C. Cir. 1985). Under this approach, determining whether or when abandonment authority was consummated often proved elusive. In 1997, the Board established a requirement that railroads authorized to abandon lines must, when actually abandoning a line, file a “notice of consummation” of abandonment. 49 C.F.R. § 1152.29(e)(2). Although today railroads must file such a notice with the Board in order to consummate abandonment authority, for lines authorized for abandonment before 1997, the Board generally looks to the railroad’s intent, on a case-by-case basis, to determine whether abandonment authority was actually consummated.


The case is interesting in its similarities to the issue at hand, namely the fact that nobody can find a formal notice of abandonment. Remember, abandonment means for freight, or common carrier use, not tourist/museum use, so CMR operating the line as a tourist line may not be viewed as "use" with regard to common carrier operation.

The National Trails Act and its railbanking provisions are mainly, as I understand them, to be used to preserve right of way from reversionary interest of adjacent property owners. In other words, it only comes into play if the original right of way was given as an easement, or sold with a right of reversion. That may not be the case of the CMR, given the fact that PC deeded it to the county in lieu of property taxes. If PC owned the property outright, and it was abandoned in the 1970s, then the act of this concernzed citizens' group may just be a fools' errand.

Of course, this is a bit outside my area of practice. I'm more than willing to listen from experienced practitioners who are well-informed in the subject, like the OP.

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 Post subject: Re: ULSTER & DELAWARE REVITALIZATION CORP.--PETITION FOR DEC
PostPosted: Wed Feb 07, 2018 10:02 pm 

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The STB should have records on this, the fact rails have been pulled alerted the Revitalization Corp their interest in the rail operation, so this has created the circumstance for the Revitalization Corp and the Counties to meet up and have a talk I presume.
Perhaps various legalities and concerns will be brought up and the requirement of the track returned.


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 Post subject: Re: ULSTER & DELAWARE REVITALIZATION CORP.--PETITION FOR DEC
PostPosted: Wed Feb 07, 2018 11:07 pm 

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dinwitty wrote:
The STB should have records on this, the fact rails have been pulled alerted the Revitalization Corp their interest in the rail operation, so this has created the circumstance for the Revitalization Corp and the Counties to meet up and have a talk I presume.
Perhaps various legalities and concerns will be brought up and the requirement of the track returned.


Are you not reading the case I posted the link to? It appears that there are several cases where there are no records of abandonment, especially on lines, like the DURR that were not part of the Conrail Final System Plan.

The STB typically doesn't deal with tourist railroads. It does deal with common carriers. Was the DURR a common carrier? Maybe, if in fact they did handle some carload freight, but under what authority? Or, was the line abandoned with the suspension of regular freight service in the 1970s, and the county is finally undertaking what it has the legal right to do, remove rails from its own property. In the end the STB will decide.

The real fact of the matter is that this is a property owner, the County, trying to do what it wants with its property, the former DURR. This is not a problem of rails vs trails or common carrier regulation by the STB. It's a political issue.

Like I said, this isn't my speciality of legal practice. I'm more than willing to be proven wrong by a practitioner familiar with the law, and I would certainly listen to such arguments. Arguments by those in this group who are looking for some magic bullet, pie-in-the-sky remedy to magically return the rails and things to as they were before is not a realistic or serious way of looking at things.

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 Post subject: Re: ULSTER & DELAWARE REVITALIZATION CORP.--PETITION FOR DEC
PostPosted: Thu Feb 08, 2018 12:47 am 

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The STB has the records...or not have the records of abandonment, meaning NOT having records of abandonement so the county pulling out rails has violated a trust. So they know how to approach the concern the Revitalization Corp has presented. If you have read some of the threads and links regardless of who owns the line the STB still has an authority for the line. Lets say Norfolk Southern owns the rails over Horseshoe curve, they then suddenly decide to rip the rails out. Somebody is going to complain because they have working traffic over those rails, or they may have potential traffic or interest, so they are going to let the STB know. Same situation here. The STB is a regulating body. The Revitalization Corp has shown interest in the line and some rails have been ripped out. So now the STB has called for a meeting of the minds between the counties and the Revitalization group, and this can eventually require the rails restored. That is what is happenning here, we'll see what becomes of the meetings.


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 Post subject: Re: ULSTER & DELAWARE REVITALIZATION CORP.--PETITION FOR DEC
PostPosted: Thu Feb 08, 2018 5:43 am 

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Location: Watchung, NJ
dinwitty wrote:
If you have read some of the threads and links regardless of who owns the line the STB still has an authority for the line.


Good evening folks,

Since I'm seriously contemplating the preparation of a pleading to be filed with the Board in this matter, I'll be brief with my comments here.

In the most simplest of terms - the STB, in all likelihood (think 99.9%), does not have any jurisdiction over the Catskill Mountain Line. Period. To the extent that Mr. Heffner has done a very admirable job in attempting to present a controversy to the Board in this matter, I must applaud his creative argument. However, his efforts can best be described as a heroic act of last gasp brinkmanship. Unfortunately, he is simply in the wrong forum.

I am very sympathetic to the U&DRRC's efforts. I think that Ulster County has been too focused on the concept of either "rail or trail, but not both".

Having said that, and having reviewed all the pleadings filed to date, I don't see any justification (at this time) for asking the STB to address a controversy that they couldn't address because they would have to invade the exclusive jurisdiction of a Court of reorganization [either the Special Court of the Regional Railroad Reorganization Act of 1973 (See: 45 U.S.C. § 719) or the US Bankruptcy Court for the Eastern District of Pennsylvania (See: 28 U.S.C.§ 1334)]

There is no "lost ICC record". The existing ICC abandonment proceeding was effectively "stayed" by Penn Central's bankruptcy filing. (See: 11 U.S.C. § 362). Unless the Bankruptcy Court expressly lifted the stay (which it may not have done), the Commission would not have issued a final ruling on PC's abandonment application.

I had a pleasant conversation today with Mr. Heffner regarding his efforts on behalf of his client. I had reached out to him informally before entering an appearance in the proceeding and seeking formal discovery; My goal was to attempt to obtain a copy of the conveyance document for the line between the trustees of the PC Estate and both Ulster and Delaware counties.

There are two key legal questions:

The 1st question was: How was the rail line conveyed to both counties?

Since the line appears to have been transferred from the Bankruptcy Trustee directly to the two counties, it appears that the conveyance was NOT made pursuant to an conveyance order of the Special Court. However, since no party is indicating that the line was transferred from a party other than PC's trustee, such a transfer could only have been accomplished by way of a conveyance order of the Bankruptcy court (PC filed for bankruptcy protection in Philadelphia on June 21, 1970).

The 2nd question then becomes: Was ICC permission required for the transfer?

There is currently insufficient evidence in the record to resolve that question. However, before one can go to the Board (the successor agency to the ICC) to resolve the question, only the Bankruptcy Court has the subject matter jurisdiction necessary to resolve any questions which may be raised regarding the conveyance of the line from the PC Estate to the two County Governments.

Some of the legal questions Mr. Heffner has raised in U&DRRC petition can only be resolved in front of the Bankruptcy Court (not the STB) since some of the questions deal with the nature and privileges of the actual conveyance. As such, the STB lacks the legal jurisdiction to resolve the controversies that need to be addressed first.

The biggest problem I see for the U&DRRC folks will be resolving how they can obtain sufficient Article III standing in order to get in front of a Court and argue there is a controversy that the Court needs to resolve. See: Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Even if they could demonstrate sufficient standing to overcome a Motion to dismiss, there is currently insufficient evidence to support the argument there is even a controversy.

I have yet to see the needed evidence that there might be an overlooked issue that would justify a Bankruptcy Court to "reopen" the now nearly 40 year old PC Bankruptcy case.

The only argument that would justify the reopening would be if the line contained reversionary property interests. So long as the railroad infrastructure remained in place, adjacent property owners could not "reclaim" their land. With all the rail infrastructure "removed", then those parties holding reversionary interests in the line might seek to "quiet title".

As an aside: If the U&DRRC acquired one of those reversionary interests, their Article III standing problem goes away.

At this point, the Petition is premature at best. Certain issues raised can't be addressed by the Board. This matter should be "referred" to the Board from the appropriate Court.
For those hoping for the "magic bullet", the current STB action is almost certainly going no where.

Don't get your hopes up.....

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 Post subject: Re: ULSTER & DELAWARE REVITALIZATION CORP.--PETITION FOR DEC
PostPosted: Thu Feb 08, 2018 9:52 am 

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Location: NJ
Further west along the same right of way, in another county. The rails / ties were removed in the 1990s and the Catskill Scenic Trail constructed on the right of way from Roxbury to Bloomville.

I don't remember any controversy over reversionary rights of property on that section when the rails were removed.

In my opinion, at the end of this current discussion, the County will be less likely to discuss or work with any railroad operator.

Another question, is the County's contractor still pulling up rail daily? I thought an injunction was being sought?

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